Appeals Court Revives Suit

Disabled Man Had Challenged Plantation

September 10, 2003|By Jeremy Milarsky Staff Writer

Making new law, a federal appeals court this week revived a lawsuit against the city of Plantation, ruling that government officials can be sued personally for retaliating against those who blow the whistle on violations of federal disabilities law.

The 11th U.S. Circuit Court of Appeals on Monday sent a lawsuit filed against Plantation by disabled activist Frederick A. Shotz back to the lower court, reversing part of an earlier decision by U.S. Magistrate Judge Barry Seltzer in Fort Lauderdale.

Last year, Seltzer effectively dismissed Shotz's suit. Now the case will proceed against the city, one council member, a private investigator and a former city department head.

"This ruling now becomes a precedent under case law. You're going to see references to Shotz vs. Plantation for years," said John Garon, a disabled activist in Plantation who is not involved in the case.

Lawyers for the city stressed that Monday's ruling does not address the overall case, it merely remands it to the lower court for further proceedings. The city has 30 days to appeal the 11th Circuit three-judge panel decision to the full court.

In 2000, former Plantation Councilman Lee Hillier asked Shotz, the owner of a Hollywood consulting firm who has testified as an expert on the Americans with Disabilities Act several times nationally, to examine a city park building. Afterward, the former chief assistant to Mayor Rae Carole Armstrong hired a private investigator, Peter Markowitz, to secretly videotape Shotz.

"They humiliated me, they embarrassed me," Shotz said Tuesday. "I've had to face humiliation across the country."

The tape shows Shotz, 54, who uses a wheelchair, standing upright at a gas station pumping fuel into his vehicle, occasionally leaning on something for support. Councilman Ron Jacobs released the tape and other background information on Shotz to the media about a month after Shotz raised concerns that the Volunteer Park activities center did not comply with the ADA.

In June 2000, Shotz sued the city, the mayor, city attorney Don Lunny, Jacobs, former mayoral assistant and finance director Robert Brekelbaum and Markowitz, the private investigator.

Last year, Seltzer granted summary judgment to the city, saying that Shotz had not proven the city's disclosure had caused him financial harm and that Shotz could not sue individuals personally -- only in their official capacity -- in an ADA case. But the appeals court disagreed, and said the city's going to the media with personal information about Shotz should help prove his claim.

"In this case, a reasonable citizen in Shotz's position would not only view the City's actions as adverse, but appalling as well, even if they were not motivated by retaliatory animus," the judges wrote.

The appeals court ruled that Armstrong and Lunny could be removed from the case as defendants, since there was no evidence that either knew the purpose of the investigation into Shotz. But Jacobs, Brekelbaum and Markowitz can be sued individually.

The judges did not rule whether Shotz's overall case was valid.

Shotz often testifies as an expert witness in ADA cases. In a telephone interview from his Hollywood office, Shotz said that since the city's investigation became public three years ago, civil attorneys have questioned his integrity in court.

He added he would again offer to settle the case out of court, as he did three years ago.

"They have at this point spent more on legal fees than what we offered to settle," Shotz said. He declined to say how much the settlement would have cost the city.

But Bruce Johnson, a Fort Lauderdale attorney handling the case on Plantation's behalf, said it is far from settled. Plantation officials can choose to ask a federal magistrate to dismiss the case on different grounds or try appealing Monday's ruling to the full court or to the U.S. Supreme Court.

"This is just three people in the 11th Circuit, and that's their opinion," Johnson said. "We certainly have our own opinion. We're reviewing our next course of action."

Jacobs declined to comment on the case Tuesday.

In the 2001 city election, Garon challenged Jacobs for his council seat, primarily for Jacobs' actions in the Shotz case. Garon lost.

One expert acknowledged the ruling's landmark nature. Individual employers and government officials are being held personally liable in civil cases more and more, said Alison Heller-Ono, president of Worksite International, a consulting firm in Monterey, Calif.

"Actually, the ADA was the only type of case not to address retaliation," she said. "And I guess that's what this case does."

Jeremy Milarsky can be reached at jmilarsky@sun-sentinel.com or 954-572-2020.